The Challenge of Replacing Scalia on the Supreme Court

The death of a Supreme Court justice has added yet another plot twist to an already convoluted primary season.

While it was a given that this year’s election would generate a great deal of controversy and heated opinions, the unexpected death of Supreme Court Justice Antonin Scalia on February 13th added a great deal of fuel to the fire. In the weeks since then, there has been a great deal of fighting between members of the Democratic and Republican parties about whether President Obama can and should nominate a new justice. While it’s safe to say that the arguments will rage all the way up until the election on November 8th, the All Things Legal team took a closer look at the Constitution to shed some light on the matter.

Craig Ashton: “The first thing is that the Constitution, under Article II, Section 2, says the president ‘shall nominate,’ and then the Senate will give ‘advice and consent,’ and then… once the advice and consent is given, then the president will appoint the judge to the Supreme Court. So, there’s no issue regarding timing, there’s no prohibition, there’s no direction regarding the timing of the nomination, but it’s clear that the president under the Constitution has [the right to nominate a Supreme Court justice].

“Interestingly enough, the Constitution doesn’t call for the size of the Supreme Court. There have been as few as six and as many as 10 justices over the course of our history. And ultimately, there is… Article III basically says that the judicial power of the United States shall be vested in one Supreme Court. So that is where the federal judicial body comes from. It comes from the Constitution itself.

“So right now there’s a debate as to whether or not Barack Obama should appoint or put forward for the Senate to advise and consent on a nominee. The Constitution is pretty clear. It doesn’t say the president shall only nominate during the first three years of his presidency. So, my feeling is that he should nominate. If the Senate doesn’t want to approve, that’s up to them. But the Constitution says ‘he shall nominate,’ so bottom line is, he has an obligation to do so.”

With Scalia gone, there is now the potential for deadlock in the court.

As long as Scalia’s seat isn’t filled, the Supreme Court has only eight justices, which creates the potential for the Supreme Court to deadlock 4-4 on rulings, which seems very likely given its past propensity for issuing 5-4 rulings. Craig Ashton and Tim Hodson took a few moments to lay out the details on the current sitting Supreme Court justices, listing them off according to when they were appointed to the court:

Anthony Kennedy, age 79, appointed in 1988 by Ronald Reagan

Clarence Thomas, age 67, appointed in 1991 by George H. W. Bush

Ruth Bader Ginsburg, age 82, appointed in 1993 by Bill Clinton

Stephen Breyer, age 77, appointed in 1994 by Bill Clinton

John Roberts, age 61, appointed in 2005 by George W. Bush

Samuel Alito, age 64, appointed in 2006 by George W. Bush

Sonia Sotomayor, age 61, appointed in 2009 by Barack Obama

Elena Kagan, age 55, appointed in 2010 by Barack Obama

When you look at who nominated the remaining justices, the cause for concern about 4-4 ties becomes much clearer: 4 of the justices were appointed by Republican presidents, while 4 were appointed by Democratic presidents.

In looking at the numbers, Ed Schade pointed out how much of an impact a president has on the direction of the country long after their presidency, just by virtue of their Supreme Court nominations: “The interesting thing is… look at Scalia. He was on [the Supreme Court for] 29 years and 4 months. So the president’s impact on what’s going to go on goes well beyond his term.” If the next justice is appointed by Obama and serves as long as Scalia did, they will be on the bench until 2045 or 2046.

However, the president faces a time crunch, as Ed Schade showed: “Let’s say he makes a nomination… and does it in June. And it’s going through all the debates and everything, and then, you get a new president… the nomination, if it’s not confirmed, ends with his presidency, because he wouldn’t be there to appoint the person that he nominated.”

Craig confirmed this observation, quoting the Republican presidential primary frontrunner: “…As Trump said, ‘Delay delay delay.’ That would be the approach from the right probably, and then the left says, ‘Hey look, we have a Constitutional obligation to make sure that third core of our system, the judiciary, is fully staffed.’”

Tim Hodson pointed out that the Republican Party’s stated desire to hold up the nomination until after the election won’t necessarily work out in their favor, saying he didn’t understand their assumption that, “delaying is somehow going to get a conservative judge in there,” especially given the particularly contentious and unpredictable nature of the GOP’s primary at the moment.

Craig brought the conversation back to a more central and apolitical viewpoint, voicing his hope that those involved in the process eventually choose to work together, rather than take sides: “I just think that smart people who are well-intentioned, regardless of their ideological foundational understanding of the process [should] appoint someone who they are comfortable with using due diligence, and then the Senate can advise and consent on it. If they have good reason not to approve, right on.”

However, as everybody focuses on how the various political players are attempting to manipulate the judicial nomination process to their own ends, most people are neglecting a simple fact: Supreme Court justices have a habit of defying expectations. Ed Schade pointed out a recent example: “John Roberts, appointed by George Bush—everybody just assumed he was going to be this ultra-conservative judge. But he’s held up Obamacare twice. So it’s kind of funny, once you get to the court, as long as you’re on good behavior, and you have good reasoning [behind your decisions], you can do whatever you want.”

It will definitely be interesting to see how the judicial nomination process plays out in the midst of the political chaos of the election. Hopefully, no matter how messy things get, the person who ends up taking a seat on the bench brings with them a great deal of respect for the legal process, and the 112 Supreme Court justices whose decisions have shaped the course of the United States.

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